The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.,
Defendant Maurice F. Foley pleaded guilty to conspiracy to traffick in 100 kilograms or more of a mixture and substance containing a detectable amount of marijuana and100 or more marijuana plants and the use and carrying of a firearm during and in relation to a drug trafficking crime. He was sentenced to an aggregate term of 330 months‟ imprisonment.
Presently pending before the Court is Foley‟s motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Because we conclude that the "files and records of the case conclusively show that the prisoner is entitled to no relief," 28 U.S.C. § 2255(b), his motion will be denied.
On August 10, 2004, a grand jury sitting in this district returned a 16-count indictment against Foley and various other individuals charging them with a host of drug-related crimes. In relevant part, the indictment accused Foley of conspiring with seven other individuals to distribute and possess with the intent to distribute more than 100 kilograms of marijuana and 100 or more marijuana plants (Count I). In addition, Foley was charged with one count of distribution and possession with intent to distribute methamphetamine (Count II), one count of using and carrying a firearm during and in relation to a drug trafficking crime (Count III), one count of possession of a firearm by a convicted felon (Count IV), one count of identity theft in connection with the drug trafficking conspiracy (Count VI), and ten counts of money laundering (Counts VII through XVI).*fn1
On April 29, 2005, in accordance with a written plea agreement, Foley entered a plea of guilty to the conspiracy charge at Count I and the firearms charge at Count III. Pursuant to Paragraph 7 of the agreement, Foley agreed to waive his rights to direct appeal and collateral attack of the judgment as follows:
7. MAURICE FRANCIS FOLEY waives the right to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, subject to the following exceptions:
(a) If the United States appeals from the sentence, MAURICE FRANCIS FOLEY may take a direct appeal from the sentence.
(b) If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, MAURICE FRANCIS FOLEY may take a direct appeal from the sentence.
(c) As a condition of his guilty plea, MAURICE FRANCIS FOLEY may take a direct appeal from his conviction limited to the following issue: whether his motion to suppress was properly denied. If MAURICE FRANCIS FOLEY takes a direct appeal raising this issue and prevails in the appeal, he may withdraw his plea of guilty. If he does not take a direct appeal or does not prevail in the appeal, the plea of guilty shall stand.
The foregoing reservations of the right to appeal on the basis of specified issues do not include the right to raise issues other than those specified.
MAURICE FRANCIS FOLEY further waives the right to file a motion to
vacate sentence, under 28 U.S.C. §2255, attacking his conviction or
sentence, and the right to file any other collateral proceeding
attacking his conviction or sentence. (See Ex. A to Govt.‟s Response
to Def.‟s §2255 Mot. [256-2] at pp.3-4 (emphasis added).)*fn2
At the time that he entered into this agreement and pleaded
guilty, Foley was represented by Attorney David Schroeder.
On July 28, 2005, this Court held a sentencing hearing. After ruling on Foley‟s objections to the presentence investigative report, the Court determined that the total offense level under the applicable guidelines was 33 and the appropriate criminal history category was VI. Given these determinations, the suggested guideline range as to Count I was 235 to 293 months‟ imprisonment. As to Count III, the guideline range was 60 months of incarceration, to run consecutively to Count I.*fn3 Based on its consideration of the guidelines range and the relevant sentencing factors under 18 U.S.C. § 3553(a), this Court sentenced Foley to an aggregate prison term of 330 months comprised of 270 months at Count I and 60 (consecutive) months at Count III.
Foley subsequently took an appeal, claiming that this Court erred in denying his motion to suppress physical evidence and in failing to adequately articulate the reasons for its sentence. On February 27, 2007, the Third Circuit Court of Appeals affirmed Foley‟s conviction and sentence, see United States v. Foley, 218 Fed. Appx. 139 (3d Cir. 2007), and on May 11, 2007, Foley‟s Petition for Rehearing En Banc was denied. His petition for a writ of certiorari was later denied by the U.S. Supreme Court.
On May 22, 2008, Foley filed the instant motion, pro se. In it, Foley claims that Attorney Schroeder was ineffective in that he: (1) failed to challenge the Court‟s criminal history calculation; (2) failed to inform Foley of possible sentencing enhancements prior to his plea; and (3) failed to raise certain "meritorious claims" at time of sentencing which would have mitigated his culpability.
The Government has responded to Foley‟s § 2255 motion by way of two arguments. First, the Government contends that the motion is barred by virtue of Foley‟s waiver of his collateral review rights as set forth in the plea agreement. Second, the Government contends that Foley‟s substantive arguments fail because no ineffectiveness on the part of Mr. Schroeder can be demonstrated on this record.
Foley filed a reply to the Government‟s response and, thereafter, Attorney John Mead was appointed to represent him. Mr. Mead has since amended Foley‟s motion so as to incorporate a reference to United States v. Williams, 558 F.3d 166 (2d Cir. 2009), wherein the Second Circuit Court of Appeals held that the 5-year mandatory minimum sentence for possession of a firearm in furtherance of a drug trafficking crime did not apply to a defendant who was subject to a 10-year mandatory minimum sentence on the underlying drug trafficking crime. The Government has responded, and the matter is now ripe for adjudication.
A. Foley‟s Waiver of Collateral Review Rights
We first consider the effect of the plea agreement language by which Foley waived his right to obtain collateral review of his sentence pursuant to 28 U.S.C. §2255. Our circuit court of appeals has said the following with respect to such provisions:
Waivers of collateral review are valid depending on "the (1) knowing and voluntary nature, based on what occurred and what defendant contends, and (2) whether enforcement would work a miscarriage of justice." United States v. Mabry, 536 F.3d 231, 237 (3d Cir.2008). Defendant bears the burden "of presenting an argument that would render his waiver unknowing or involuntary." Id.
We have declined to enumerate specific instances where waivers are per se invalid and instead examine whether the waiver was knowing and voluntary in light of: the clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result. [United States v.] Khattak, 273 F.3d [557, 563 (3d Cir. 2001)] (internal quotations and alteration omitted).
U.S. v. Padilla-Castro, 2011 WL 1667167 at *1-2 (3d Cir. May 4, 2011). The miscarriage-of-justice exception, it has been said, "should be applied "sparingly and without undue generosity.‟" United States v. Ligons, 395 Fed. Appx. 916, 918 (3d Cir. 2010) (quoting United States v. Wilson, 429 F.3d 455, 458 (3d Cir. 2005)). It should not be used as an avenue to pursue "garden-variety claims of error." United States v. Teeter, 257 F.3d 14, 26 (1st Cir. 2001) (cited in Watts v. United States, 386 Fed. Appx. 245, 249 (3d Cir. July 13, 2010).
In determining whether the waiver a knowing and voluntary, we must also consider whether our plea colloquy conformed to the mandates of Rule 11 of the Federal Rules of Criminal Procedure. United States v. McKoy, 350 Fed. Appx. 732, 735 (3d Cir. 2009) (quoting United States v. Mabry, 536 F.3d 231, 239 (3d Cir. 2008)). Pursuant to Rule 11(b)(1)(N), the district court‟s plea colloquy must "inform the defendant of, and determine that the defendant understands, ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence." Fed. R. Crim. P. 11(b)(1)(N).
Here, Foley contends that he was misled and/or coerced into entering the plea agreement by virtue of: (i) counsel‟s assurances that Foley would face a sentence of no more than 16 years if he pleaded guilty; (ii) counsel‟s representations that the sentence of Foley‟s co-defendant, John Kirkpatrick, would be much greater if Foley did not plead guilty; and (iii) the fact that Foley was under the effect of medications at the time of the plea hearing. Notably, Foley is not contending that his guilty plea was defective by virtue of a Rule 11 error.
Nevertheless, we independently consider the requirements of Rule 11 and conclude that the Court‟s colloquy did not include the requisite discussion concerning Foley‟s waiver of appellate and post-conviction collateral rights. Since Foley did not object at the time of his plea or sentencing to any Rule 11 error, this defect may not serve as a basis for setting aside Foley‟s guilty plea unless he can satisfy, in light of the whole record, that: (1) this Court committed an error, (2) that is plain or obvious, and (3) which affects his substantial rights. United States v. Goodson, 544 F.3d 529, 539 (3d Cir.2008) (citing Johnson v. United States, 520 U.S. 461, 467 (1997)). "If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. (quoting Johnson, 520 U.S. at 467) (internal quotation marks omitted). See also McKoy, 350 Fed. Appx. at 735.
Based on the technical violation of Rule 11 which exists here, we will assume that the first two prongs (i.e., plain error) have been established. Yet, our inquiry does not stop there.
Rather, we must determine whether Foley has demonstrated "that the deficient colloquy affected his substantial rights by precluding him from knowing of and understanding the significance of the binding . waiver in the plea agreement." Goodson, 544 F.3d at 540. See also United States v. Long, 304 Fed. Appx. 982, 984 (3d Cir. 2008) (defendant bears the burden of persuasion with respect to whether an alleged Rule 11 error affected his substantial rights) (citing Goodson, 544 F.3d at 539). Significantly, as we have noted, Foley does not even raise such a claim in his §2255 motion, much less has he attempted to prove the point. He also made no such claim in his direct appeal where, to the contrary, he expressed his awareness of the appellate waiver provision but attempted to get around it by arguing to the circuit court that the particular sentencing challenge he was raising on appeal fell within an exception to the waiver provision.
In any event, though, the record as a whole does not support the conclusion that the deficiencies in this Court‟s plea colloquy precluded Foley from knowing of and understanding the significance of the provision waiving his post-conviction collateral rights. At the time of his guilty plea, Foley was a thirty-two year old man with a high school diploma equivalency who could communicate in English with his counsel, as both Foley and his attorney verified. This Court, with both counsels‟ agreement, found him to be competent. During the plea proceedings, the prosecutor discussed the terms of the appellate waiver provision. Although he did not recite or specifically discuss the provision that waived Foley‟s collateral rights under §2255, the prosecutor did recite the various exceptions to the appellate waiver language, including an exception which allowed Foley to challenge on appeal this Court‟s adverse ruling on his suppression motion. The fact that these exceptions -- particularly the reservation of Foley‟s right to challenge this Court‟s suppression ruling -- were written into the plea agreement suggests that they were of particular importance to Foley and specifically bargained for by him. (The importance of the suppression issue to Foley is further demonstrated by the fact that it formed his primary issue on appeal.) The fact that the prosecutor specifically discussed these exceptions to the appellate waiver clause during the plea colloquy reinforces the notion that Foley would have been aware of the impact which the plea agreement had on his ability to later attack his plea and sentence. I am persuaded that the exception in the appellate rights waiver clause preserving Foley‟s right to appeal this Court‟s suppression ruling, which was his primary challenge on appeal, demonstrates that Foley knew of the appellate waiver and its terms, and comprehended its significance.
In addition to the foregoing, the plea colloquy shows that Foley unequivocally acknowledged having read and reviewed the plea agreement before coming to court. Foley further acknowledged that he had discussed the agreement with his attorney and that he was in full agreement with all of its terms and conditions as indicated by his signature on the document. Importantly, the following language appears immediately above Foley‟s signature on the final page of the plea agreement:
I have received this letter from my attorney, David A. Schroeder, Esquire, have read it and discussed it with him, and I hereby accept it and acknowledge that it fully sets forth my agreement with the Office of the United States Attorney for the Western District of Pennsylvania. I affirm that there have been no additional promises or representations made to me by any agents or officials of the United States in connection with this matter.
(Govt.‟s Response to Def.‟s Motion under § 2255 [256-1] at p. 6.)
Based on all of the foregoing considerations, I conclude that Foley has failed to demonstrate that this Court's Rule11 error precluded him from "knowing of and understanding the significance of the binding [§ 2255] waiver in the plea agreement." Goodson, 544 F.3d at 540. Thus, Foley cannot show that his substantial rights were affected by the technical violation of Rule 11(b)(1)(N).
I further conclude that Foley‟s substantial rights were not impaired by virtue of any of the other alleged deficiencies in the plea proceedings. Specifically, I reject Foley‟s arguments that his guilty plea was rendered unknowing and/or involuntary by virtue of: (i) his counsel‟s assurances that Foley would face a sentence of no more than 16 years if he pleaded guilty; (ii) counsel‟s representations that the sentence of Foley‟s co-defendant, John Kirkpatrick, would be much greater if Foley did not plead guilty; and (iii) the fact that Foley was under the effect of medications at the time of the plea hearing.*fn4
First, Foley cannot demonstrate on this record that his plea was induced by false assurances that his term of imprisonment would not exceed sixteen years. During its colloquy, this Court specifically informed Foley that Count I carried a maximum term of imprisonment of 40 years and Count III carried a mandatory minimum prison sentence of five years, consecutive to any other term of incarceration, and a maximum term of life imprisonment. Foley acknowledged his awareness of these maximum penalties. (Plea colloquy  at pp. 14-17.) Foley stated under oath that he was not changing his plea "under duress or complaint or unwillingly." (Id. at p. 20.) He specifically disavowed the claim that anyone had made any promises to him in order to induce his plea aside from what was stated in the plea agreement. (Id.) He was specifically advised, and indicated his understanding, that this Court would not be able to determine the advisory guideline sentencing range until after the presentence report had been completed and the government had had the opportunity to challenge the report. (Id. at p. 23.) Foley was also specifically advised and acknowledged that the Court could, under certain circumstances, decide to impose a sentence that would be more severe than that called for by the guidelines and that, in the event that the sentence was more severe than expected, Foley would still be bound by his guilty plea. (Id. at 23-24.) Under oath, Foley expressly denied that anyone had made predictions or promises to him concerning what his sentence would be, and he further denied that the Court had in any way suggested what his sentence might be. (Id. at pp. 24-25.)
Second, Foley cannot demonstrate on this record that his guilty plea was coerced or induced by representations that his failure to plead guilty would result in a much higher sentence for his co-Defendant, Kirkpatrick. Again, Foley specifically disavowed the idea, both at the plea hearing and in his acknowledgment on the written agreement, that his plea had been induced by promises outside of what was contained in the agreement itself. With respect to ...